Abstract
To say that the world is increasingly interconnected is perhaps cliché, but Refuge Lost provides a unique and timely analysis of this interdependence by exploring the ways states learn from one another how to devise and implement asylum-denying laws and policies. Attention to this sharing process is of great urgency. As the number of displaced people reaches unprecedented levels, there seems to be a repertoire of deflection and deterrence strategies used by states around the globe, including detention, interdiction, and extraterritorial processing. Many of these practices violate international human rights, yet their diffuse and repeated use has a dangerous, normalizing effect. Rather than indicative of their legitimacy, as Ghezelbash argues, the diffusion of these practices reflects the process of “copycat lawmaking” (167). States not only emulate the tactics employed by other countries to deny the rights owed to asylum seekers but may be competing to seal their borders so they are not left with the onus of providing protection.
Refuge Lost hones in on this process by examining how legal and policy transfers between the United States and Australia led to the emergence and entrenchment of three controversial measures: long-term mandatory detention, maritime interdiction and “push backs,” and extraterritorial processing. Ghezelbash traces how these practices were devised by the United States, primarily in response to Haitian asylum seekers, and later adopted and adapted in Australia. To study these transfers, Ghezelbash develops an original interdisciplinary framework that combines a “process oriented” approach to studying policy transfers with detailed comparative analysis of law (8). This approach moves beyond pinpointing transfers of law and policy which manifest in identical language to study more subtle forms of exchange and influence. His framework focuses on how policymakers keep track of one another’s laws and policies, ultimately borrowing those believed to successfully reduce asylum-seeking, as well as the motivations for the exchanges and forums in which they take place.
Ghezelbash devotes a chapter each to exploring the origins and evolution of detention, maritime interdiction, and extraterritorial processing. The bulk of his analysis focuses on how laws and policies introducing these measures were transferred between the United States and Australia and the juridical and political reception in each jurisdiction that determined their success or failure. A critical finding is that despite key differences between US and Australian legal cultures and constitutional rights, the legitimacy of asylum-denying laws and policies hinges on one commonality: the “exceptional position given to unauthorized arrivals” (177). That is, people deemed outside sovereign territory have dramatically fewer rights and protections as states deny the applicability of international laws and judicial review. Refuge Lost effectively demonstrates how this status of “being outside” sovereign territory is actively constructed and built through political calculations and a number of legal fictions. Indeed, only certain aliens are deemed “not present” for immigration purposes even when they are physically present within territory (113).
One powerful example is when the US courts determine that Haitian asylum seekers held at Guantanamo Bay are outside US territory and thus the reach of US statutory and constitutional protections, while they later determine that enemy combatants held in the same space fall within US territorial jurisdiction. This comparison reveals an alarming deterioration of humanitarian sympathy in which a supposed enemy of the state is given more rights than a person fleeing persecution. It also provides a stark example of politically expedient legal interpretations, demonstrating the precariousness of what is often presented as an absolute or singular way of interpreting migrant rights and state responsibilities. Indeed, by analyzing these judicial decisions, the reader can appreciate the substantial work put into rationalizing asylum-denying practices.
Ghezelbash’s fine-grained analysis in each chapter reveals the complex interpretive work and legal maneuvering that executive and legislative branches of government put into positioning often-dubious laws and policies as outside the jurisdiction of international law. A broad range of scholars will find Ghezelbash’s analysis useful because he demonstrates how deflection and deterrence measures have been honed over long periods of time –– tested, challenged, adapted, reimplemented, and suspended only to be picked up again at another political moment, as with elements of Australia’s “Pacific Solution.” For those engaged in critical border or migration studies, Refuge Lost exposes the fraught and precarious justifications of these practices and the many contingencies in domestic law and policy-making. Though not addressed in the book, the analysis raises important questions about how these precarious justifications create opportunities to challenge state practices and how the transfer of law and policy can be used to expand refugee rights and protections.
While the overall trend portrayed in the book is a sobering one of declining accountability, Ghezelbash cuts through the obfuscation created in domestic legal contexts to clearly outline how these practices violate international human rights. In a compelling chapter on international law, he builds his argument by turning to a variety of human rights instruments, ranging from the 1951 Refugee Convention to international laws of the seas. While critical questions remain about the inherently exclusionary nature of the categories on which the international refugee regime relies, Refuge Lost brings urgent attention to the reciprocal learning and increasing competition among states to deter and deflect migrants. It will be a useful resource to anyone interested in disrupting this contemporary “race to the bottom” of restrictive immigration control measures.